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Jurisdictional Explanation

There are two broad categories of waters that the Corps has jurisdiction over.


 

  1. Navigable Waters of the United States
a. Are regulated under Section 10 of the Rivers and Harbors Act
b. Are waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce
c. In the Alaska District, examples of navigable waters include, but are not limited to, Big Lake, Yukon River, and Cook Inlet.

 

  1. Waters of the United States
a. are regulated under Section 404 of the Clean Water Act
b. These waters include navigable waters and other parts of the surface water tributary system down to the smallest of streams (e.g., tributary that only contains water after a rain event), lakes, ponds, or other water bodies on those streams, and adjacent wetlands (e.g. sloughs, swamps, and some seasonally flooded areas) if they meet certain criteria.
c. Isolated waters such as old river scars, cutoff sloughs, and abandoned construction and mining pits may also be waters of the United States.


The geographic extent of these waters are divided into three categories.


 

  1. Tidal waters of the United States
Under Section 10 of the Rivers and Harbors Act, the extent of Corps jurisdiction in tidal waterways extends shoreward to the mean high water line
Under Section 404 of the Clean Water Act, the extent of Corps jurisdiction in tidal waters extends to the high tide line. When adjacent wetlands are present, the geographic limits extend to the delineated limits of the wetland.

 

  1. Non-tidal waters of the United States
The limit of jurisdiction in non-tidal waters extends to the ordinary high water mark.
When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the delineated limit of the adjacent wetlands.

 

  1. Territorial Seas
The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles.

Section 10 of the Rivers and Harbors Act of 1899

Section 10 requires authorization from the Secretary of the Army, acting through the Corps of Engineers, for the construction of any structure in or over any navigable water of the United States.

Structures or work outside the limits defined for navigable waters of the United States require a Section 10 permit if the structure or work affects the course, location, or condition of the water body.

The law applies to any dredging or disposal of dredged materials, excavation, filling, re-channelization, or any other modification of a navigable water of the United States, and applies to all structures, from the smallest floating dock to the largest commercial undertaking. It further includes, without limitation, any wharf, dolphin, weir, boom breakwater, jetty, groin, bank protection (e.g. riprap, revetment, bulkhead), mooring structures such as pilings, aerial or subaqueous power transmission lines, intake or outfall pipes, permanently moored floating vessel, tunnel, artificial canal, boat ramp, aids to navigation, and any other permanent, or semi-permanent obstacle or obstruction.

Section 9 of the Rivers and Harbors Act of 1899

Section 9 prohibits the construction of any bridge, dam, dike or causeway over or in navigable waterways of the United States without Congressional approval.

Administration of Section 9 has been delegated to the Coast Guard.

Structures authorized by state legislatures may be built if the affected navigable waters are totally within one state, provided that the plan is approved by the U.S. Army Corps of Engineers commanding general and the Secretary of Army (33 U.S.C. 401).

Section 404 of the Clean Water Act

Section 404 requires authorization from the Secretary of the Army, acting through the Corps of Engineers, for the discharge of dredged or fill material into all waters of the United States, including wetlands.

Discharges of fill material generally include, without limitation: placement of fill that is necessary for the construction of any structure, or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential, and other uses; causeways or road fills; dams and dikes; artificial islands; property protection or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for intake and outfall pipes and subaqueous utility lines; fill associated with the creation of ponds; and any other work involving the discharge of fill or dredged material.

A Corps permit is required whether the work is permanent or temporary. Examples of temporary discharges include dewatering of dredged material prior to final disposal, and temporary fills for access roadways, cofferdams, storage and work areas.